Who Cares about COPPA Advertising Legally to the Teen and Tween Market

1
Who Cares about COPPA?Advertising Legally to
the Teen and Tween Market

• Liisa M. Thomas
• Gardner, Carton Douglas
• 321 N. Clark Street, Suite 3400
• Chicago, Illinois 60610
• [phone]
• lthomas_at_gcd.com

2
Rules to Follow

• Deceptive Trade Practices Act
• (state and federal)

Federal Rules and Guidelines
Industry Guidelines
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know your audience. anyone might be on the other
end of the message.
Advertising to a Special Group
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Special Considerations When Advertising to
Teens/Tweens

• When Determining Deceptiveness, FTC Will Look at
  Your Target Audience. You Should Too.
• What Do Teens/Tweens Expect?
• What Will Teens/Tweens Think is Truthful?
• What is Likely to Deceive a Teen/Tween?
• What Will Bait a Teens/Tweens?
• What Might be Dangerous to a Teens/Tweens?

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Special Considerations When Contracting with
Teens/Tweens

• Watch Out!! Kids Cant Enter Into Binding
  Contracts
• To Ensure Payment
• Involve Parents if Purchasing Online, By Mail,
  Over Phone.
• To Avoid Liability
• Involve Parents when Awarding Prizes in
  Sweepstakes.

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FTC Rules and Guidelines(enforced under the
Deceptive Trade Practices Act)

• Policy Statement Regarding Advertising
  Substantiation
• Guidelines Against Bait Advertising
• Guides Against Deceptive Pricing
• Guide Concerning Use of the Word Free

• Guide Concerning the Use of Endorsements and
  Testimonials
• Mail or Telephone Order Merchandise Rule
• Online Privacy Guidelines

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FTC Advertising Substantiation

• Reasonable Basis to Make Claim. Whats
  Reasonable? FTC Looks At
• consumer expectations
• type of claim
• product in question
• consequences of a false claim
• Benefits of truthful claim cost of developing
  substantiation

• amount of substantiation experts believe is
  necessary
• Prior Substantiation
• necessary if claim is expressed (test prove,
  doctors recommend, studies show)
• Need current extrinsic evidence (expert
  testimony, consumer surveys)

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FTC Bait Advertising

• Offer Must Be Bona Fide Offer To Sell Product
• Dont Make False Impressions of Whats Actually
  Going to Be Sold
• Dont Discourage People From Buying Actual
  Product Being Advertised. Discouragement Means

• Not Having Enough Product In Stock
• Advertising Defective Product
• Not Filling Order Quickly
• Paying Salepeople Not to Sell Advertised Product
• Dont Switch Products After Sale

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FTC Deceptive Pricing

• Former Price Comparisons
• Former price must be one at which product was
  sold/offered for sale
• Dont artificially inflate original price
• Retail Price/Comparable Price Comparisons
• Advertised higher price must really exist

• Suggested/List Prices
• Price must correspond to one at which substantial
  number of sales of the product are made
• Bargain Offers (2 for 1, Buy One, Get one Free,
  50 Off, Etc.)
• All terms must be made clear from beginning
• General Guide Be Truthful

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FTC Use of Free

• Free Language that Initiates Rule free, buy 1,
  get one free, 2-for-1 sale, 50 off with purchase
  of 2
• Definition of Free paying nothing for item, and
  no more than regular price for other
• Prominent Disclosure of Terms make at outset of
  offer, prominent (not in a footnote)

• Disclose All Terms for example, mention which
  resellers arent offering free item, notify if it
  is while supplies last, etc.
• Introductory Offers do not make a free offer
  with a new product unless you know that you will
  sell the same product later at the same price,
  without the free item
• Frequency no more than 6 months in 12 month
  period, 30 days before same promotion (in given
  area)

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FTC Endorsements and Testimonials

• General Considerations
• Reflect Honest Opinion of Endorser
• Present Opinion in Context (but dont have to use
  exact wording)
• If endorser is presented as using product, must
  actually use it
• Only run ad as long as endorser uses product
• Consumer Endorsements
• Will be viewed as representing group of
  consumers, need substantiation or conspicuous
  clarification

• If say actual use an actual consumer
• Expert Endorsements
• must truly be qualified
• must be within area of expertise or must clearly
  clarify
• Organizational Endorsements
• Must substantiate that reflects view of
  organization as a whole
• If representing as an expert, opinion must have
  been reached by an expert at the company

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FTC Order Fulfillment (The Mail Order Rule)

• Must Ship by
• Time You Specify at Time of Sale, or
• Default Within 30 Days from When Order Placed!!
• What if Product is Back-ordered (i.e., cant ship
  on time?)
• Notify customer within reasonable time

• Provide them choice to wait or cancel order
• No consumer response (as long as properly
  notified) constitutes consent to delay
• If delay is more than 30 days, then order
  automatically should be cancelled unless consumer
  affirmatively consents to delay

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FTC Online Privacy

• Notice (what, why, how, whom)
• Choice (opt in, opt out)
• Access (to review, modify, correct delete
  information collected)
• Security/Data Integrity (procedural and technical
  protection measures)
• Enforcement (internal and external measures)

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Network Television Guidelines

• Accurately Represent the Products Appearance
• Show the Product in a Safe Play Situation
• Demonstrate the Actual Product Solely on its
  Merits as a Toy

• Disclose the exact Method of the Toys Operation
• Disclose any Assembly Requirements
• Disclose What is Inside a Toy Package
• Disclose any Battery Requirements

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• Offline/Online Advertising Improvements
• No ads to kids of products known to be harmful to
  them.
• Designate schools as advertising-free zones.
• Establish a rating systems for toys that conforms
  to the ratings for the media programs to which
  they are linked.

• Online, They Urge Companies
• Not to Collect Personal Information from Children
• To Separate Advertising From Content, and Label
  Clearly
• Not to Link Content Areas to Advertising
• Not to Allow Direct Interaction between Kids and
  Product SpokesCharacters
• No Online Microtargeting, No Direct-Response
  Marketing

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DMA Guidelines

• General Guidelines Similar to FTC
• Kid-Specific Guideline Make offers Suitable to
  Audience (Article 12)
• Think about age range, knowledge, sophistication
  and maturity
• No credit cards, online gambling
• Children Not Bound to Contracts

• DMA Tips
• Clean lists so children do not receive
  inappropriate marketing materials
• Implement quick/effective mechanisms to remove
  children's names when requestes
• Use age-appropriate language in advertising
  material and
• Make pictures and graphics clear, appropriate and
  complete.

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ESRB Guidelines

• Accuracy
• Dont Glamorization Your ESRB Ratings
• Create Ads with View Towards Public
  Responsibility
• No Offensive Content

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Thanks! Questions?
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The Golden Rules

• Think About the Regulators What Would Your
  Mother Say?
• Think About the Consumers What Would Your Kids
  Think?

Liisa M. Thomas Gardner, Carton Douglas 321 N.
Clark Street, Suite 3400 Chicago, Illinois
60610 [phone] lthomas_at_gcd.com
12174351